Disabling a Civil Right

Disabling a Civil Right

The Supreme Court has made a decision that is wrongheaded, and wrong.

January 24, 2002

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The case of Toyota Motors v. Williams, which the Supreme Court decided on January 8, virtually wipes out a legal remedy for millions of workers who face job discrimination because of a physical impairment. The unanimous opinion by Sandra Day O’Connor was a serious blow to the already reeling Americans with Disabilities Act and reflected how indifferent our society, courts and legislature are to the issue of disability discrimination.

Ella Williams developed carpal tunnel syndrome from doing repetitive tasks at the Toyota plant where she worked in Kentucky. When she sued Toyota for disability discrimination for refusing to give her work she could do that didn’t involve exacerbating her injury, the auto company argued that Williams was not “disabled” and thus had no right to use the law. The Supreme Court agreed, ruling that Williams’s condition did not constitute a “disability” because she could still perform tasks “central to daily life” such as cooking her meals or brushing her teeth.

What the Supreme Court decided in the Williams case was wrongheaded, and wrong. The Americans with Disabilities Act is a civil rights law; its intent was to focus on eliminating employers’ practices that are discriminatory. It would be one thing for the Court to rule that a company did not discriminate against a worker in a case like Williams’s. But the Court never even deals with that; it simply says that someone like Williams has no right to even be allowed to use the law. This is far different from the way other civil rights laws are applied. Toyota has succeeded in limiting the use of the law to only those people deemed “disabled enough” to have the “special privilege” of using the law–as if, in the 1960s, companies had successfully argued that only people who were of 100 percent African-American heritage could use the Civil Rights Act (and first they had to have a doctor prove they were “truly Negro”). We may think this idea bizarre, but that’s exactly like what Toyota has now got the Court to agree to. It’s simply a way to limit access to civil rights, and tragically, it’s working.

The business community cheered the decision. They saw Toyota’s legal strategy as a way to head off expensive lawsuits by closing the courtroom door to injured or impaired workers. “The definition of disability is the ballgame,” wrote Samuel Issacharoff and Justin Nelson in a law review article earlier this year. In its amicus brief to the Supreme Court, the American Trucking Associations extolled Toyota’s legal tactic as a way of “keeping the lid on ADA litigation.”

Now workers with conditions like Williams’s (repetitive-motion injuries accounted for more than a third of the 1.7 million workplace injuries reported in 1999, according to the Bureau of Labor Statistics) and other “nontraditional” disabilities who face discrimination on the job because of injuries will never even get a chance to make their case in court.

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Yet the Toyota case has provoked little discussion among disability activists. This points up the peculiar situation disability rights finds itself in: Although disability–and the prejudice one can face being disabled–affects potentially all of us, the discrimination faced by everyday people like Ella Williams is rarely addressed by the movement; and legislators and the courts don’t seem to understand it. Because almost no one treats the issues advanced by the disability rights movement as serious public issues–certainly not as racial rights issues were three decades ago–the promises of the Americans with Disabilities Act remain largely unrealized.

The law, passed in 1990, was intended to be a broad proscription against discrimination on the basis of disability by private employers, places of public accommodation and state and local governments. Enforceable only through lawsuits, it is mostly ignored by employers, public accommodations and state and local governments. Of all the cases heard by federal courts of appeal in the first eight years after the ADA became law, only 5 percent concerned access; most involved job discrimination–and employers won more than 90 percent. A decade after passage, disabled people remain as unemployed as they ever were, with 70 percent of all severely disabled people out of work. Most of California’s state offices remain inaccessible despite the law; the story is much the same nationwide. Sidewalks are only sporadically accessible in most cities. Last March, in Fresno, California, a disability activist was killed by a motorist while wheeling in the street, unable to get onto a sidewalk because there were no curb cuts. There was little public outcry, and curb cuts in Fresno are still a long way off.

Disability ideology is divided into two schools: One holds that disabled people form a “discrete and insular minority,” akin to racial minorities; the other sees disability as something any of us can slip into and out of, depending on circumstances. When we become functionally limited by repetitive stress, heart conditions, failing hearing, goes this second line of reasoning, we can be subject to the same invidious bigotry faced by those people who have, for example, been locked away in institutions for drooling, twitching and speech that sounds unrecognizable to others. This school says that even people with heart conditions controlled by medication, if that heart condition is behind an employer’s discriminatory animus, have the right to the ADA’s legal protections.

Proud of being a “discrete minority,” disability rights activists fight mainly on behalf of people disabled enough to need in-home help and barrier removal. They focus on the ADA’s Title 3, which requires access to places of public accommodation, and its Title 2, forbidding state governments to discriminate architecturally or in services. These two titles affect those whom most of us instinctively think of as “truly disabled”: people who use wheelchairs, blind people, deaf people–and people in institutions. American Disabled for Attendant Programs Today (ADAPT) fights for states to move money from nursing homes to in-home services, in line with the Supreme Court’s 1999 Olmstead ruling that the ADA requires city- and state-run services to be given in the “most integrated setting.” ADAPT also lobbies for the Medicaid Community Services and Supports Act, which would give Medicaid recipients a choice in deciding whether they want to be put in a nursing home or have the money used to pay for help in their own home. But the bill–in Congress last fall for the third time–receives little national attention.

The contention that disabled people form a discrete–and small–minority can arise from a very different motive: desire to rein in the disability rights law. Expressing this line of thought, the Los Angeles Times lectured in an April 26, 1999, editorial that the ADA “was not designed to create remedies for aggrieved employees or allow every form of common impairment to be treated as a protected disability.” But if people face irrational discrimination because of the disability, shouldn’t they have the protection of law?

Disability leaders had originally wanted the Civil Rights Act extended to cover disability, as it had been extended to cover gender; but they were given a cool reception by traditional civil rights groups, which saw the problems disabled people faced not as ones of discrimination but rather as, simply, medical problems. And so they were left to fashion a special, separate civil rights act in a decidedly antirights era. With the help of disabled appointees in the Bush Administration like Equal Employment Opportunity Commission head Evan Kemp, disability lobbyists used a seemingly savvy tactic, saying their proposed law would merely extend protections of the 1973 Rehabilitation Act’s Title 5 (which forbade discrimination against “individuals with handicaps” by programs receiving federal dollars) to private employers, places of public accommodation and state and local governments.

“It was important to convey to Congress that we weren’t shaking the foundations of society” with the bill, says Georgetown law professor Chai Feldblum, one of the bill’s lobbyists. To carry out the “not a new law” strategy, drafters picked up the seventeen-year-old rehabilitation law’s definition of a “qualified person with a handicap,” said Feldblum, and put it in the law.

Unlike the 1964 civil rights law, which focused on discrimination on the basis of a characteristic, like religion or race, that everybody had, the ADA defined the people it covered: people who had “a physical or mental impairment,” people who had a history of a disability and people “regarded as” disabled. The bill’s drafters figured that if you were being discriminated against on the basis of disability, it would be clear it was happening because of one of these three things. Courts have pretty much ignored this reasoning, however, viewing the ADA as simply a kind of benefits law for people who can prove they’re “qualified” for its protections.

Unlike the Civil Rights Act, which “came after a tremendous amount of mass consciousness-raising about race and racism, the ADA passed with very little understanding of what disability discrimination really is,” says University of California, Berkeley, law professor Linda Krieger. The ADA is “based on a sociocultural model of disability that judges don’t understand.” “Legal analysis has proceeded quite a way down the wrong road,” says Robert Burgdorf, who as an attorney with the then-National Council on the Handicapped (now the National Council on Disability) was the law’s original architect. Krieger says judges “who were very liberal on other civil rights issues” were stopping ADA cases before they even got started, telling people they weren’t disabled as the ADA defined it “and that they therefore didn’t have a right to use the law at all.”

Following this line of thought prior to the Toyota decision, the Supreme Court chipped away at the definition of disability. In cases decided 7-2 in June 1999, the Court ruled that people with bad vision but corrected with glasses (Karen Sutton and Kimberly Hinton) and people with high blood pressure taking medicine (Vaughn Murphy) weren’t really “disabled people” qualified to use the law. Whether they had ever been discriminated against on the basis of disability was never discussed. (In his dissent, Justice Stephen Breyer said the Court had been “cowed” by the argument that any other decision would “lead to a tidal wave of lawsuits.” The phony “tidal wave of lawsuits” whine had been coming from business since the law was signed.)

In the February 2001 Garrett decision, the Court finessed the issue of discrimination, using the doctrine of states’ rights. When she was diagnosed with breast cancer, Patricia Garrett was director of Ob-Gyn neonatal services for the University of Alabama, Birmingham, hospital. She had a lumpectomy and underwent radiation and chemotherapy but, hewing to her philosophy to not be “consumed by” one’s disease, kept working. To get her to “take it easy”–although she’d never expressed a desire to–her boss forced on her a demotion and $13,000 salary cut. She sued the university under the ADA. Alabama fought her all the way to the Supreme Court.

By the time Garrett lost her case, last February, her discrimination issue was all but buried. Sandra Day O’Connor, herself a breast cancer survivor, agreed with the majority that there was no real history of discrimination by states against people with disabilities sufficient to warrant Congress passing a law that superseded a state’s “sovereign immunity” protected by the Eleventh Amendment; that while the racial discrimination in this country that had led to the Voting Rights Act of 1965 was real and documented, evidence of disability discrimination is only “anecdotal.”

If disability discrimination is ever to be understood for what it is, the nation is going to have to begin to focus on the discrimination and stop obsessing about whether people are “disabled enough” to “deserve” protection from that discrimination. We are going to have to get over thinking of disabled people as only a tiny group and understand that, as Burgdorf says, “human beings do not really exist in two sharply distinct groups of ‘people with disabilities’ and ‘people without disabilities.'”

Disability is “a natural part of the human condition,” he says, “and will touch most of us at one time or another in our lives.” Our real goal as a society should be, as Burgdorf says, not to “identify a particular group of individuals who are entitled to some kind of special treatment” but to “provide equal opportunities for all Americans” whenever any of us faces discrimination because of disability.

Mary JohnsonMary Johnson's book, Make Them Go Away: Clint Eastwood, Christopher Reeve and the Case Against Disability Rights, will be published by the Advocado Press this year (2002). She edits Ragged Edge magazine.